Thoms v. Smith, Civ. No. 14246.

• Decision Date: 09 November 1971
• Docket Number: Civ. No. 14246.
• Parties: William P. THOMS, on behalf of himself and all those similarly situated v. Allan SMITH, Assistant Prosecuting Attorney of the Fourteenth Circuit Court of the State of Connecticut, et al.
• Court: U.S. District Court — District of Connecticut

334 F. Supp. 1203

William P. THOMS, on behalf of himself and all those similarly situated v. Allan SMITH, Assistant Prosecuting Attorney of the Fourteenth Circuit Court of the State of Connecticut, et al.

Civ. No. 14246.

United States District Court, D. Connecticut.

November 9, 1971.

John M. Fitzgerald, Corp. Counsel, Hartford, Conn., for Thomas Vaughan, Chief of Police.

Steven H. St. Clair, Connecticut Civil Liberties Union, Hartford, Conn., for

plaintiff; Joseph D. Harbaugh, Connecticut Civil Liberties Union, West Hartford, Conn., William R. Breetz, Jr., Cooperating Atty., Connecticut Civil Liberties Union, Hartford, Conn., of counsel.

John F. Shea, Jr., Thomas R. O'Marra, Manchester, Conn., for Chief Reardon and Chief Kjellquist.

Robert Y. Pelgrift, Corp. Counsel, West Hartford, Conn., for Chief Wm. P. Rush.

John F. Mulcahy, Jr., New Haven, Conn., for Richard P. Heffernan.

Before SMITH, Circuit Judge, and BLUMENFELD and CLARIE, District Judges.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge:

Plaintiff Thoms is opposed to what he deems to be "prevailing American values and/or governmental policies." He alleges a desire to express that opposition by publicly and peaceably defacing the American flag, or by displaying a distorted image of it. His desire is chilled, however, by Conn.Gen.Stats. § 53-255,¹ which makes "misuse of the flag" a criminal offense. By this class action, brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343, Thoms seeks a declaration that the statute is unconstitutional because vague and overly broad. Because he seeks as well an injunction against its enforcement by the defendants, a three-judge district court was convened, 28 U.S.C. §§ 2281, 2284.

I. Comity

Defendants have invoked Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its companions² to support their contention that the instant case is one which a federal court should not entertain. Those cases dealt with the propriety of federal court intervention in pending state criminal prosecutions. The Court was expressly silent "about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun."³ Younger v. Harris, supra, 401 U.S. at 41, 91 S.Ct. at 749. Because there is no prosecution pending against Thoms or the class he represents, Younger is inapplicable and imposes no bar to our consideration of the merits.⁴See Anderson v. Vaughn, 327 F.Supp. 101 (D.Conn. May 18, 1971).

II. Justiciability

To satisfy the "case or controversy" requirement of Article III of the Constitution, plaintiff must "show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 960, 22 L.Ed. 2d 113 (1969).

Plaintiff brings this suit in the context of active enforcement of the criminal statute. Several recent arrests have been made and prosecutions initiated under the statute, by defendants or by other law enforcement officials and prosecutors. Moreover, plaintiff has informed these defendants of the particular "misuse of the flag" he wishes to employ to express himself,⁵ and has attempted to solicit from them a prior indication of their prosecutorial stance with respect to that expression. Three of the defendants did not respond to plaintiff's letters; two indicated by phone their intent to enforce the statute. Of the latter, one expressed doubt about whether plaintiff's proposed conduct would occasion his arrest under the statute; the other replied: "* * * go ahead and do it, and, * * * if you're in violation of the statute we'll lock you up."

Under these circumstances the controversy between the parties to this lawsuit is sufficiently real and immediate to be justiciable. Plaintiff and his class have a substantial and genuine interest in expressing their views by conduct which they are not unreasonable in assuming violates the statute.⁶ Their desire for this particular kind of expression is chilled by the very real threat of arrest and prosecution by these defendants under the challenged statute.⁷ Because the interest affected arises under the first amendment, we should be especially vigilant that it not go unprotected.⁸ There being no prosecutions pending against plaintiff or his class, there is no other present judicial forum in which the threat to these basic interests may be tested. In a similar situation, this court recently commented:

"* * * we are of the view that the plaintiffs ought not be forced to violate a law affecting their First Amendment rights and subject themselves to criminal prosecution in order to place the issue before a judicial forum. Forced exposure to criminal sanctions in order to test the validity of statutory limitations of First Amendment rights is irreparable injury of sufficient dimension to justify federal declaratory relief. See Perez v. Ledesma 401 U.S. 82, 120, 91 S.Ct. 674, 694, 27 L.Ed.2d 701 (1971) (separate opinion of Mr. Justice Brennan)." Anderson v. Vaughn, supra, 327 F.Supp. at 103.

We adhere to that view. See also Parker v. Morgan, 322 F.Supp. 585, 587 (W.D. N.C.1971).

III. Constitutionality

It bears emphasis at the start that plaintiff mounts his attack upon the statute on its face, and not simply as it might hypothetically be applied to proscribe the wearing of his vest. With the case in that posture, and overbreadth claimed as the fatal defect, our inquiry is whether

"there is a reading of the statute which authorizes local law enforcement officers to prosecute traditional First Amendment activity * * * even though the statute may also purport to proscribe activity not entitled to constitutional protection." Long Island Vietnam Moratorium Comm. v. Cahn, 437 F.2d 344, 348 (2d Cir. 1970) (citations omitted) (hereafter Vietnam Moratorium).

As in Coates v. City of Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214, 218-219 (1971),

"we need not lament that we do not have before us the details of the plaintiff's conduct * * *. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech."

In judging whether Connecticut's flag misuse statute is susceptible to a reading which would proscribe constitutionally protected conduct, we are guided by the Court of Appeals' recent decision in Vietnam Moratorium, supra, 437 F.2d 344. The court in that case struck down as constitutionally overbroad on its face the very similar New York flag desecration statute. Sitting as a District Court, even as statutorily expanded to a panel of three for purposes of this case, we are unquestionably bound by the holding of that case insofar as pertinent to ours. Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970).

We start with the proposition, expressed in Vietnam Moratorium as well as elsewhere, that "many types of flag usage and flag alteration * * * are a * * * means of nonverbal political communication," 437 F.2d at 349, and as such are forms of "symbolic speech" entitled to constitutional protection. The flag salute is a "form of utterance." West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The communication of ideas or disagreements is not limited to spoken or written words. See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). With the court in Crosson v. Silver, 319 F. Supp. 1084, 1086 (D.Ariz.1970), "we think it is self-evident that most, if not all, conduct associated with the United States flag is symbolic speech."

"Sometimes the flag represents government. Sometimes it may represent opposition to government. Always it represents America—in all its marvelous diversity." Parker v. Morgan, supra, 322 F.Supp. at 588.

While symbolic speech does not enjoy the comprehensive first amendment protection provided for pure speech, see Vietnam Moratorium, supra, 437 F.2d at 349, its restriction is justified only by a valid state interest. Id.; see Tinker v. Des Moines Indep. Community School Dist., supra, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. In United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), the Court held that the validity of a regulation limiting symbolic speech depends upon whether:

"it is within the constitutional power of the Government; * * * it furthers an important or substantial governmental interest; * * * the governmental interest is unrelated to the suppression of free expression; and * * * the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

In Street v. New York, 394 U.S. 576, 591, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1969), the Court listed the state interests "which might conceivably have been furthered by" a conviction under New York's flag defilement statute for speech which was contemptuous of the flag:

"(1) an interest in deterring appellant from vocally inciting others to commit unlawful acts;⁹ (2) an interest in preventing appellant from uttering words so inflammatory that they would provoke others to retaliate physically against him, thereby causing a breach of the peace;¹⁰ (3) an interest in protecting the sensibilities of passers-by who might be shocked by appellant's words about the American flag;¹¹ and (4) an interest in assuring that appellant, regardless of the impact of his words upon others, showed proper respect for our national emblem."¹²

While the interests at stake when symbolic speech is involved are not necessarily the same, ...